Opinion
No. Civ. S 05-0447 GEB PAN P.
November 29, 2005
FINDINGS AND RECOMMENDATIONS
Petitioner was convicted in the Sacramento County Superior Court of violating Penal Code § 290(g)(2) (failure to register as a sex offender) and allegations of a prior conviction were found to be true. Petitioner was sentenced in 2002 to serve 26 years to life in prison.
The case proceeds on the March 7, 2005, amended petition. Petitioner concedes claims A, K and L are unexhausted, but seeks a stay until the California Supreme Court decides the same claims now before it in habeas petition S130219 (filed three months before petitioner filed his petition herein).
August 24, 2005, respondent moved to dismiss the mixed petition. Respondent concurs claims A, K, and L are pending before the California Supreme Court but does not address the propriety of a stay. Respondent further argues parts of claims D, E, F, H and I are neither exhausted nor present in any petition before the California Supreme Court.
Petition opposed dismissal, contending all claims and parts of claims are exhausted except A, K and L and reiterating his request for a stay.
Having reviewed all petitions and addendums petitioner submitted to the California Supreme Court (Lodged Docs. 1, 3, 4 and 6), the court concludes that court was fairly apprised of all petitioner's claims and subclaims, and ruled upon all of them except claims A, K and L.
To grant a stay this court must find good cause for petitioner's failure to exhaust unexhausted claims earlier and that the unexhausted claims are not plainly meritless. Rhines v. Weber, ___ U.S. ___, 125 S.Ct. 1528 (2005). Claim A alleges petitioner's waiver of his right to a jury trial was not voluntary considering his documented mental impairments (schizophrenia and mental retardation) and coercion by the trial court and counsel. Claims K and L allege appellate counsel was constitutionally deficient in failing to raise claims of ineffective assistance of trial counsel and involuntariness of the jury trial waiver on appeal.
Respondent has not explained why claims A, K and L are plainly meritless, nor does it appear they are. If petitioner succeeds on Claims K and L, that likely will provide "good cause" for his prior failure to exhaust claims. Accordingly, the court finds the Rhines requirements are satisfied.
The court hereby recommends respondent's August 24, 2005, motion to dismiss be denied and the mixed petition be stayed until the California Supreme Court resolves pending claims in habeas petition S130219.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1), these findings and recommendations are submitted to the United States District Judge assigned to this case. Written objections may be filed within 10 days of service of these findings and recommendations. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge may accept, reject, or modify these findings and recommendations in whole or in part.